Stewart v NHS Business Services Authority [2018] EWHC 2285 (Ch)

Case No E30MA112[2018] EWHC 2285 (Ch)IN THE HIGH COURT OF JUSTICEVenue BUSINESS & PROPERTY COURTS IN MANCHESTERAPPEALS (ChD)Venue Manchester Civil Justice Centre,, 1 Bridge Street West, Manchester M60 9DJDate Date: 29 August 2018
Before
HIS HONOUR JUDGE STEPHEN DAVIESSITTING AS A JUDGE OF THE HIGH COURT
Between
DR DAVID STEWARTAppellantNHS BUSINESS SERVICES AUTHORITYRespondent
Sarah Keogh (instructed by Capital Law LLP, Cardiff) for AppellantPatrick Halliday (instructed by Government Legal Dept, London) for RespondentHearing Hearing date: 26 July 2018Draft judgment circulated: 16 August 2018
JUDGMENTHis Honour Judge Stephen DaviesHHJ Stephen Davies:
[1]This judgment is divided into the following sections: A Introduction and summary 2 - 14 B The grounds of appeal 15 - 25 C Decisions of the BSA and complaints to and appeals from the Pensions Ombudsman 26 - 33 D The relevant facts 34 - 82 E The proper construction of regulation 3(2) of the Injury Benefit Regulations 83 - 114 F The employment issue 115 - 128 G The attribution issue 129 - 134 H The causation issue 135 - 156 I Conclusions 157 - 159 A. Introduction and summary[2]The Appellant is a consultant paediatric intensivist who, in 2010, was employed by the Central Manchester NHS Foundation Trust (“the Trust”) as a consultant in Paediatric Intensive care at the Royal Manchester Children’s Hospital. In that year he travelled to India to speak at a conference held in Surat from 26 to 31 October 2010 at the invitation of the organisers of that conference. He did so on professional paid leave which had been approved by the Trust. After the conference he then spent two weeks on pre-arranged annual leave, travelling more widely in India with his wife from 1 to 13 November 2010. At some point during his trip he was bitten by a mosquito, as a result of which he contracted two infectious diseases, one being dengue fever and the other being chikungunya.[3]Most unfortunately the consequences especially of the chikungunya have been serious and long-lasting, causing him to suffer from a debilitating polyarthropathy (a multiple joint dysfunction) leading to lengthy periods of absence from work. By July 2013 he was unable to work at all with the effect that his pay was reduced by 50%.[4]As a result, in October 2013 he applied to the Trust for temporary injury allowance (“TIA”) which, in summary and as relevant to this case, is payable under the National Health Service (Injury Benefits) Regulations 1995 (“the Injury Benefits Regulations”) by reference to regulation 3(2) in the case of:(1) “a disease which is contracted in the course of his employment and which is wholly or mainly attributable to his employment”; or(2) a disease which is “wholly or mainly attributable to the duties of his employment”. I shall refer to these two alternatives as the“course of employment gateway” and the “duties of employment gateway”.[5]In March 2014 the Trust referred the application to the Respondent, the NHS Business Services Authority (“the BSA”), for it to make a decision. Whilst I shall have to refer to the history of the decision-making process in more detail subsequently it suffices for present purposes to say that initially and at both stages of the subsequent internal appeal process the BSA rejected his claim for one or other or both of the following reasons:(a) On the balance of probabilities Dr Stewart had contracted the infectious diseases not whilst attending the conference but whilst on holiday on annual leave after the conference;(b) In any event he had not attended the conference in the course of his employment.[6]I shall refer to these two reasons as the “causation reason” and the “employment reason” and the issues they throw up as the“causation issue” and the “employment issue”.[7]Dr Stewart exercised his right of appeal to the Pensions Ombudsman. The Pensions Ombudsman appointed an adjudicator to seek to resolve the dispute. The adjudicator initially provided an opinion favourable to Dr Stewart. Subsequently, having considered further representations from the BSA, he changed his mind. Dr Stewart challenged the revised opinion and the Pensions Ombudsman took the matter over himself, producing a final determination (“the Determination”) in which he dismissed the appeal. He undoubtedly found in the BSA’s favour on the employment issue although there is an issue as to whether or not he made any clear determination on the causation issue.[8]An appeal from the Pensions Ombudsman lies to the High Court with permission on a point of law. Dr Stewart applied for permission to appeal which Barling J granted with the result that the substantive appeal was heard before me on 26 July 2018.[9]Without seeking to apportion blame, on any view it is extremely regrettable that it has taken almost 5 years from the initial submission of the application for TIA to reach this point.[10]The answer to the causation issue requires me to consider whether the BSA approached the question in the right manner and had proper regard to all of the relevant evidence. It also involves me considering what decision it actually reached on the question and the circumstances in which the Pensions Ombudsman came to decide the issue - if he did - against Dr Stewart. Finally, and if I decide that the approach of the BSA and the Pensions Ombudsman was legally flawed, I have to consider whether I can and should decide the question myself or whether or I must remit the question down to the Pensions Ombudsman, if appropriate with a direction that he remit the question down to the BSA. I also have to consider the impact of a new argument raised by Mr Halliday for the BSA for the first time in his skeleton argument in relation to the causation issue. This further issue, described in [25] below, I refer to as the attribution issue.[11]The answer to the employment issue requires me to consider the proper construction of regulation 3(2) and to decide whether or not, on a proper analysis of the facts, a consultant attending a conference on professional leave falls within the course of employment gateway or (if different) the duties of employment gateway.[12]Both counsel argued the employment issue before the causation issue because, as is apparent from the above, if Dr Stewart cannot succeed on the employment issue he cannot succeed overall even if he succeeds on the causation issue. I will therefore address the issues in that order as well.[13]I have had the benefit of excellent written and oral submissions from counsel for Dr Stewart, Ms Sarah Keogh, and from counsel for the BSA, Mr Patrick Halliday. It is obviously an important case for Dr Stewart and it is also a case of some wider importance, since it raises issues as to the correct construction of regulation 3(2) which have not, it would appear, been considered before. It also requires a close consideration of:(a) the terms of Dr Stewart’s employment;(b) the evidence as to the circumstances in which Dr Stewart had the misfortune to contract the diseases whilst in India; and(c) the way in which both the BSA and the Pensions Ombudsman approached the case. All of these factors explain the length of this judgment, for which otherwise I should apologise.[14]In summary, in my judgment Dr Stewart is correct in relation to his criticisms of the BSA and the Pensions Ombudsman as regards their determination of the employment issue and the causation issue and is also right in his response to the attribution issue. All three issues could only rationally have been answered in his favour. It follows that the appeal must succeed and that the Pensions Ombudsman should issue a revised determination giving effect to these conclusions. B. The grounds of appeal[15]There are eight grounds of appeal. Grounds one to five relate to the employment issue and grounds six to eight relate to the causation issue.[16]The first ground is that the Pensions Ombudsman wrongly identified and as a result incorrectly applied the test under regulation 3(2).[17]The second ground is that in deciding the question under regulation 3(2) the Pensions Ombudsman wrongly determined the question solely by reference to whether or not Dr Stewart’s professional leave constituted working time under the Working Time Regulations 1998 (“WTR”).[18]The third ground is that the Pensions Ombudsman’s conclusion in relation to professional leave and working time was unsupported by the evidence and was one which no reasonable person could have reached.[19]The fourth ground is that the Pensions Ombudsman’s conclusion in relation to professional leave and working time involved an incorrect interpretation of the relevant terms and conditions applicable to consultants.[20]The fifth ground is a reasons challenge to the Pensions Ombudsman’s decision on the question under regulation 3(2).[21]The sixth ground is a perversity challenge to the Pensions Ombudsman’s decision on the causation issue.[22]The seventh ground is a complaint that the Pensions Ombudsman failed to apply the civil standard of the balance of probabilities to the causation issue.[23]The eighth and final ground is a reasons challenge to the Pensions Ombudsman’s decision as to the causation issue.[24]In May 2018, following the grant of permission, the BSA filed a respondent’s notice seeking to uphold the decision on the basis that, even if Dr Stewart was right on the causation issue, as regards the employment issue he did not meet either the course of employment gateway or the duties of employment gateway. This was a response to a criticism made by Ms Keogh that the Pensions Ombudsman had failed to address the duties of employment gateway in his decision.[25]In his skeleton argument Mr Halliday also advanced a further argument, which was not a matter relied upon by the BSA in its decisions or advanced before or relied upon by the Pensions Ombudsman, which was that even if Dr Stewart was right on the causation issue and that he suffered the infection whilst attending the conference, nonetheless it was not “wholly or mainly attributable” either to the course of his employment or to the duties of his employment since the predominant cause of the infection was a bite by an infected mosquito which could have happened to anyone present in Surat at that time and, it followed, was not sufficiently linked to his employment. I shall refer to this as the “attribution issue”. In support of this submission Mr Halliday relied upon two decisions of the Upper Tribunal (Administrative Appeals Chamber) in relation to the Armed Forces Compensation Scheme. Ms Keogh submitted that this was a new argument not raised or considered below. She also submitted that in any event it was wrong both in law and on the facts. I shall have to consider how to address this point later in this judgment. C. Decisions of the BSA and complaints to and appeals from the Pensions Ombudsman[26]In order to understand the somewhat tortuous process of this claim it is necessary to say something about the procedures in question.

(a) Decisions of the BSA

[27]Regulation 22 of the Injury Benefits Regulations provides for the Secretary of State to determine questions arising under the Regulations and to resolve any disputes arising in accordance with the dispute resolution procedure issued in conformity with section 50 of the Pensions Act 1995. The Secretary of State has delegated the administration of the NHS Injury Benefits Scheme to the BSA. Under the BSA disputes process a claimant who is dissatisfied with the original decision may invoke - as Dr Stewart has done in this case - a two stage formal internal dispute resolution procedure. This proceeds in accordance with a policy published by the BSA which in summary provides for the matter to be reviewed by a disputes officer at the first stage and by a pension scheme manager at the second stage.

(b) Complaints to the Pensions Ombudsman

[28]The Pensions Ombudsman derives his jurisdiction in relation to an occupational pension schemes from Part X of the Pension Schemes Act 1993. Under s.146(1)(c) he may investigate and determine complaints made in relation to any dispute of fact or law between the referring party, who must be an actual or potential beneficiary under the scheme, and the responding party, who is the person responsible for the management of the scheme. Only the Pensions Ombudsman has the jurisdiction to determine complaints, whereas he is entitled to and does delegate the investigation and the provision of non-binding opinions to pension adjudicators authorised by him to perform those functions. He must provide a written statement of his determination which must contain the reasons for his determination: s.151(1). He may include in his statement a direction to the person responsible for the management of the scheme to take such steps as he may specify (s.151(2)), which may include a direction to pay interest at the prescribed rate on any payment in respect of benefits which ought, in his opinion, to have been paid earlier: s.151A. Under the Personal and Occupational Pension Schemes (Pensions Ombudsman) (Procedure) Rules 1994 made under s.149(2) and which govern the investigation and determination of such complaints the Pensions Ombudsman has wide powers, including the power to hold public hearings and receive evidence.[29]Mr Halliday submitted, and Ms Keogh did not dispute, that in a case such as the present the Pensions Ombudsman may only upset the decision of the BSA on limited grounds. Mr Halliday referred to what Etherton J (as he then was) had said in NHS Pensions Agency v Suggett [2005] EWHC 1265 (Ch) at [41]:
“The Ombudsman was not entitled to upset the decision of the Agency on whether the conditions in Regs. 3 and 4 have been met … if the Agency has adopted a correct interpretation of the Regulations, has asked itself the correct questions, has taken into account all relevant factors and ignored irrelevant factors and has not arrived at a perverse decision.”
[30]In his judgment and as support for that proposition Etherton J referred to an earlier decision of the Court of Appeal in Harrison v Shuttleworth [1994] PLP 47 at [36] – [37] and to the subsequent decision of Park J in The Saffil Pension Scheme v Curzon [2005] EWHC (Ch) 293 at [36] and [46]. These cases were concerned with decisions taken by trustees of pension schemes who, under the scheme rules, had a margin of discretion as to the making of payments under the schemes. Whether that proposition should be applicable in its full force to a decision made in a case such as the present, where:(a) there is no suggestion that BSA has any discretion; and(b) the Pensions Ombudsman appears to have full jurisdiction to determine disputes of fact as well as disputes of law has not been argued before me, so that I proceed on the basis stated in Suggett.[31]The decision of the Court of Appeal in Harrison and the previous decision of the Court of Appeal in Kerr v British Leyland (Staff) Trustees (unreported) 26 March 1986, which was also referred to by Park J in Saffil, are of relevance insofar as they illustrate the circumstances in which the Pensions Ombudsman may decide the question for himself or should remit for reconsideration with such direction(s) as may be appropriate. In short, as I read these authorities, the Pensions Ombudsman may decide the question for himself where he is satisfied that the decision is perverse, whereas in other cases the appropriate course is to remit.

(c) The ambit of an appeal from a Pensions Ombudsman

[32]It is provided by ss.151(3) & (4) of the Act that the determination of the Pensions Ombudsman shall be final and binding save for an appeal on a point of law to the High Court.[33]In Young v. NHS Business Authority [2015] EWHC 2686 (Ch) Nugee J, referring to earlier authority, stated at [2] that the only question was whether or not there was an error of law and that in answering that question the court should refuse to entertain appeals on “points of fact dressed up as points of law”. A point of law is one which “arises from the wrong application of a legal principle, or from the misconstruction of a statutory provision or from a decision that no reasonable Ombudsman, properly directing himself on the facts and the law, could have reached”. As Ferris J said in his earlier decision in McCaulay v Pension Ombudsman [1998] Pensions Law Reports 211 at [33] a decision of fact should only be interfered with if “there was no evidence to support it or it could be said to be an inference drawn from other facts found by the Ombudsman which pointed inexorably to the opposite conclusion as being the only one which a properly directed tribunal could reach”. D.

(a) The relevant terms and conditions of Dr Stewart’s employment

[34]Given the arguments which have been advanced to me it is necessary to refer to the relevant terms and conditions of Dr Stewart’s employment in some detail.[35]It is common ground that Dr Stewart was employed by the Trust and that his contract of employment incorporated the contractual provisions contained in the document entitled “Terms and Conditions - Consultants (England) 2003” (“the 2003 Consultants Terms”). As I understand it this is a document which was the subject of negotiation and agreement between those representing NHS employing bodies and the BMA as the consultants’ professional organisation and which has been subject to amendment from time to time. The 2003 Consultants Terms were designed to be read with the particular terms of employment as agreed between the individual employer and the individual consultant. It is clear from the 2003 Consultants Terms that the specific duties and responsibilities to be undertaken by the consultant should be set out and agreed in a Job Plan so that the contractual Job Plan and the Consultants Terms should both form the contract and be read together.[36]The format of the 2003 Consultant Terms was that it contained a number of contractual definitions followed by 29 schedules, of which I have been referred to two which are said to be of relevance to this case.[37]The definitions section defines “Contractual and Consequential Services” as being “the work that a consultant carries out by virtue of the duties and responsibilities set out in his or her Job Plan and any work reasonably incidental or consequential to those duties. These services may include: Direct Clinical Care; Supporting Professional Activities; Additional NHS Responsibilities; External Duties”. These were then further defined. As relevant to this case Supporting Professional Activities were defined as “activities that underpin Direct Clinical Care. This may include participation in training, medical education, continuing professional development, formal teaching, audit, job planning, appraisal, research, clinical management and local clinical governance activities”. Programmed Activity was defined as “a scheduled period, nominally equivalent to four hours, during which a consultant undertakes Contractual and Consequential Services”.[38]I was referred to Schedule 2, entitled “Associated duties and responsibilities”. These include:(a) a duty to maintain professional standards and obligations as required by the General Medical Council (“theGMC”) and in particular to comply with the GMC’s guidance on Good Medical Practice (“GMP”);(b) a responsibility for carrying out work related to and reasonably incidental to the duties set out in the Job Plan, such as maintaining skills and knowledge.[39]I was also referred to Schedule 18, entitled “Leave and public holidays”. This set out in section A the annual leave entitlement for consultants which, as applicable to Dr Stewart as a consultant with seven or more years’ service was six weeks plus 2 days. It also set out in section B provisions relating to professional and study leave which included the following:
“Definition 9. Professional and study leave includes: study, usually but not exclusively or necessarily on a course or programme; research; teaching; examining or taking examinations; visiting clinics and attending professional conferences; training. Conditions 11. Any grant of leave is subject to the need to maintain NHS services. 12. Where leave with pay is granted, the consultant must not undertake any other paid work during the leave period without the employing organisation’s prior permission. Period of leave 13. Professional or study leave will normally be granted to the maximum extent consistent with maintaining essential services in accordance with the recommended standards, or may exceptionally be granted under the provisions of paragraphs 14 and 15. The recommended standard for consultants is leave with pay and expenses within a maximum of 30 days in any period of three years for professional purposes within the United Kingdom. Additional periods of professional and study leave in the UK 14. Authorities may at their discretion grant professional or study leave in the UK above the period recommended in paragraph 13 with or without pay and with or without expenses or with some proportion thereof. Professional and study leave outside the UK 15. Authorities may at their discretion grant professional and study leave outside the UK with or without pay and with or without expenses or with any proportion thereof. Conditions 16(iii) Where an application is made under paragraphs 14 and 15 for a period of leave with pay, and this exceeds three weeks, it shall be open to the leave granting organisation to require that one half of the excess over three weeks shall be counted against annual leave entitlement, the carry forward or anticipation of annual leave within a maximum of three weeks being permitted for this purpose.”
Conditions Period of leave Additional periods of professional and study leave in the UK Professional and study leave outside the UK

Conditions

[40]In his letter of 5 January 2016 in support of his second stage appeal Dr Stewart referred to and set out extracts from the Study Leave Policy which formed part of the New Consultant Contract Implementation Guidance promulgated by the Trust. This included the following:(a) Study leave was defined as “a period of leave of absence taken for the purpose of enhancing professional knowledge and skills”, including “attending scientific and medical management courses and meetings” and “which contributes to CPD”. Professional leave was defined as “leave of absence taken for the purpose of using professional skills and experience for the wider benefit of the NHS”, including “national lecture activity”.(b) The Trust recognised and supported the need for consultants to partake in CPD and appreciated that meetings and courses offered on site need to be supplemented by study leave in order to attend external meetings and courses. The Trust also recognised and supported the need for consultants to use their professional expertise and skills for the wider benefit of the NHS.(c) Although the Trust drew a distinction between approved leave, for whatever purpose, and programmed activities, it also recognised that the purpose of the leave might relate to supporting programmed activities, giving the example of study leave to attend a course or scientific meeting as a feature of CPD, whereas job plans would include CPD activity not requiring a period of study leave.(d) The Trust recognised that it had a duty to ensure that consultants benefited from study and professional leave and that such leave added value to the NHS.[41]The contractual document containing Dr Stewart’s Job Plan was apparently not produced or referred to either by the BSA or the Pensions Ombudsman. For the purposes of this appeal Dr Stewart provided a copy of a document entitled Paediatric Intensive Care Job Description issued by the Trust for locum consultants to be employed by the Trust to undertake paediatric intensive care at the Royal Manchester Children’s Hospital, which included the applicable Job Plan, on the basis that his Job Plan and Job Description was in substantially the same terms as that one. At the hearing Mr Halliday stated that he did not have instructions as to whether or not Dr Stewart’s contract contained the same provisions. It is clearly a document produced by the Trust to apply to consultants undertaking the same role as Dr Stewart’s position (indeed, he is specifically referred to in the document as one of the consultant medical staff), albeit on a locum basis. There is no reason for thinking that Dr Stewart’s job description and job plan would not have contained the same or substantially the same provisions and I proceed on that basis. Section 3 was entitled “Duties of the Post” and, after stating the contractual commitment in relation to clinical practice, continued under the section entitled “Job Plan” to state that the “total contractual commitment will be 10 [weekly] programmed activities”, of which nine were clinical programmed activities and one was a non-clinical programmed activity. This non-programmed activity was stated “to include:(a) CPD (separate from study leave);(b) Appraisal / job planning/ clinical governance;(c) Teaching / training / outreach education; and(d) Audit and research”.[42]Further detail as to the specified non-clinical duties were given in relation to:(a) Teaching, where the consultants were required to contribute to monthly regional teaching and weekly in-house teaching.(b) Audit.(c) Continuing medical education, as to which it stated: “[The Trust] is committed to supporting continuing medical education for all specialists with both time and financial support from the Trust. Consultants are expected to maintain their personal portfolios in accordance with the requirements of their relevant Royal College, including the acquisition of the appropriate CPD points. The Trust has an Appraisal system for all consultants which includes a review of CPD.”(d) Research and Innovation.[43]Dr Stewart’s wider responsibilities, as he stated in his letter to the BSA of 3 August 2014, included being the lead clinician for education and training for the intensive care medicine department and also the chair for the education committee with special responsibility for curriculum in the international paediatric simulation society. In the same letter Dr Stewart noted that:(a) attendance at conferences, in both a delegate and a speaker role, is an accepted method of complying with CPD requirements;(b) CPD requirements specify that 50% of points must be external to the person’s place of work.[44]Finally, I was referred to the document entitled Good Medical Practice produced by the GMC which, as is common ground, obliges doctors to keep their professional knowledge and skills up to date and regularly to take part in activities that maintain and develop their competence and performance.

(b) The visit to India

[45]Some time prior to May 2010 Dr Stewart was invited to participate as a speaker, panellist, debate participant and workshop facilitator in a conference on Paediatric Critical Care to be held in Surat, India in October 2010. The conference was plainly a major national event, organised by the Surat Paediatric Association with some 600 delegates expected to attend. As he said in his letter of 5 January 2016, he was “part of an international panel of clinicians both lecturing and participating in scientific debates, all of which were directly relevant to [his] NHS employment, enhanced [his] own knowledge base and the Trust’s standing in the international medical community”. As he said in his submission to the Pension Ombudsman, as well as his direct involvement in the conference, he also attended many of the other sessions to further his own education. This was consistent with his earlier email of 19 March 2014, where he said that although he was invited to the conference to participate he also advanced his knowledge from the opportunities the conference provided.[46]His invitation was on the basis that he received no fee for attending this event although his food and accommodation were paid by the organisers (see his email of March 2014).[47]Dr Stewart was willing to attend and asked the Trust for permission to do so, as he was undoubtedly required to do under Schedule 18 of the 2003 Consultants terms, and which the Trust was equally willing to give. Accordingly, he accepted the invitation. As I have said, he arranged to take annual leave in India on a holiday with his wife, who was to join him after the conference. Again, there was no difficulty with his taking annual leave on that basis.[48]Dr Stewart arrived in Surat on 26 October 2010 and attended the conference from 26 to 31 October inclusive. On 1 November 2010 he travelled to Delhi, where he met his wife, and then travelled on holiday in Rajasthan and other well-known tourist destinations until leaving India on 13 November 2010.[49]I shall refer in more detail later in this judgment to the evidence as to the circumstances in which Dr Stewart suffered from an infected mosquito bite and as a result contracted both dengue fever and chikungunya.

(c) The determinations of the BSA

[50]Having made his claim to the Trust in October 2013 Dr Stewart was asked a number of questions, which he answered in March 2014. In particular, he said that:
“I was bitten at the beginning of the trip, whilst in Surat, whilst lecturing at the conference, and the condition manifested shortly after the conference ended, after I travelled away for my annual leave. I spent much of my annual leave prostrated by the combination of dengue fever and chikungunya, eventually having to attend hospital where they confirmed the clinical diagnoses and stated that I could not fly until my platelet count had recovered.”
[51]In March 2014 the Trust referred the case to the BSA for determination which in turn referred Dr Stewart’s claim to an organisation providing a medical advisory service known as OH Assist, a trading name of the Atos Group. In July 2014 it rejected his application. The decision on the causation question was based simply on the assertion that since Dr Stewart was on holiday for a longer period than he was at the conference the longer the time duration the higher the risk.[52]Dr Stewart exercised his right of internal appeal, submitting correspondence in August and September 2014 to which I shall refer in more detail subsequently. For present purposes I should note that in his letter of 15 September 2014(a) he stated that he “became symptomatic two days after finishing the conference”;(b) he acknowledged that he had no documentary evidence to corroborate when the infection occurred, but provided significant further information, supported by identified references, in support of his case that it must have been at the conference.[53]The BSA appointed a disputes officer to undertake a review of the application together with the scheme medical advisers. On 1 October 2015 it obtained, but did not at the time disclose to Dr Stewart, a report from a Dr Simpson of OH Assist. It is clear from the report that Dr Simpson had been provided with the correspondence submitted by Dr Stewart. Although Dr Simpson noted that Dr Stewart had no documentary corroboration, he did not suggest that there was anything from a medical perspective which contradicted Dr Stewart's account or which any way cast any doubt on his version of events. Importantly, whilst Dr Simpson stated that it was not possible to state “exactly” where and when he sustained an infected mosquito bite, he accepted that he had clearly done so and that it was likely that both infections were contracted at the same time. In a concluding sentence upon which Ms Keogh places some reliance, he stated:
“If, as he states, Dr Stewart developed infective symptoms two days after the end of the conference period, then it is likely, on balance, that he sustained an infected mosquito bite during this period of time.”
[54]Nonetheless the BSA wrote to Dr Stewart upholding the rejection of the claim on 12 October 2015. Addressing the causation issue first, it referred to Dr Simpson’s conclusion that it was not possible to state exactly where and when Dr Stewart suffered an infected mosquito bite although, surprisingly, it omitted any reference to the final sentence from Dr Simpson’s report quoted above. It also said this: “Whilst I am not questioning your veracity, I require contemporaneous corroborative evidence that an incident occurred. There is no contemporaneous corroborative evidence of the fact that you sustained a mosquito bite during the conference”.[55]Turning to the employment issue, it drew a distinction between being required to attend the conference in the course of his employment and using professional leave as a benefit of his contract of employment to attend the conference on the basis of an independent invitation and voluntary acceptance. It said that professional leave is an entitlement comparable with annual leave and, on that basis, decided that his attendance at the conference was not in the course of his NHS employment.[56]Dr Stewart, remaining dissatisfied, exercised his right to invoke the second tier appeal process in November 2015. In his letter he complained that as regards the causation issue the BSA was wrongly requiring him to prove his case to a standard higher than the balance of probabilities in circumstances where the evidence clearly demonstrated his case on the balance of probabilities. In relation to the employment issue he made a number of points, including the following:(a) since he had to ask for and obtain permission to attend the conference and since, had he failed to do so, he could have been subject to disciplinary action, professional or study leave for that purpose could not be equated with annual leave;(b) whilst he was entitled to choose which conferences to attend he was obliged to comply with his CPD obligations and attending conferences was a permitted method of so doing.[57]The BSA rejected this second appeal in a decision communicated on 5 February 2016 on the basis that it was “not satisfied that your attendance at an external conference in which professional leave was granted qualifies as ‘in the course of the person’s employment’”. Its reasons included the following:(a) the WTR (Working Time Regulations 1998) did not support the argument that professional leave counted as working time;(b) the grant of professional leave as a right afforded by the contract of employment did not mean that taking that leave involve discharging the duties of employment;(c) Dr Stewart was invited independently and accepted voluntarily rather than at the request of the Trust;(d) the fact that attending the conference enabled Dr Stewart to comply with his CPD obligations did not create an employment relationship in relation to the activity, even though the Trust recognised and supported compliance with CPD obligations;(e) even if professional leave was provided for the pursuit of endeavours directly related to NHS employment, being related to NHS employment was not sufficient to engage regulation 3(2).[58]Having determined the appeal against Dr Stewart on the basis of the employment issue, the BSA did not go on to reach any specific conclusion as to whether or not the infected mosquito bite occurred whilst attending the conference.[59]Mr Halliday submitted that it followed that the previous decision of the BSA at the first appeal stage was not overturned and remained in place. Ms Keogh submitted that this could not be right, given that the purpose of the second appeal was to consider the question afresh, as she submitted the writer of the second appeal decision impliedly recognised when she said: “However, before determining whether on the balance of probability the infected mosquito bite occurred whilst attending the conference, the Scheme has to be satisfied that your attendance as a guest speaker at the conference falls to be considered as in the course of NHS employment and therefore form part of your duties of NHS employment”.[60]I agree with Ms Keogh on this point. Since the BSA at the second appeal stage resolved the claim against Dr Stewart on the employment issue, there can be no basis for a conclusion that it would necessarily have reached the same determination on the causation issue as had been reached at the first appeal stage had it had to decide the point. It follows, in my judgment, that there was no decision made by the BSA on the causation issue at the second appeal stage.

(d) The Appeal to the Pensions Ombudsman

[61]Dr Stewart, remaining dissatisfied but having exhausted his internal appeal rights, exercised his right to seek a determination from the Pensions Ombudsman. He made a lengthy and detailed submission to the Ombudsman in August 2016. In addition to repeating points already made, he raised the following further relevant points.[62]Addressing the point made by the BSA about the WTR, he noted that under paragraph 2 “working time” was defined to include “(b) any period during which [the employee] is receiving relevant training” and submitted that this applied in his case. He also argued that in any event he was carrying out his duties whilst teaching at the conference and thus fell within paragraph (a) of the definition in the WTR in any event. In that regard he referred to a decision of the EAT in Edwards v Encirc [2015] IRLR 528 to which I was also referred and to which I shall refer subsequently.[63]The BSA was given the opportunity to reply and did so in October 2016. It effectively repeated the contents of its previous determinations. In response to the arguments advanced by Dr Stewart in relation to the WTR it did not accept that the training argument applied where Dr Stewart was on professional or study leave and it also did not accept that the Edwards case supported Dr Stewart’s case. Dr Stewart responded in November 2016. Amongst other points, he raised the following:(a) that it was sufficient for him to satisfy either the course of employment gateway or the duties of employment gateway and that he satisfied both;(b) the authorities on vicarious liability in tort for employee’s wrongful conduct were relevant to the course of employment gateway. In relation to point (b) he relied upon the decision of the Supreme Court in Mohamud v. Wm Morrison Supermarkets [2016] AC 677, to which I was also referred and to which I shall also refer subsequently.[64]His complaint was first considered by an adjudicator who provided an opinion in writing in January 2017 in which he upheld Dr Stewart’s complaint. In short, he considered that the Edwards case did indeed support Dr Stewart’s case on the employment issue and that the BSA had failed to consider the evidence submitted by Dr Stewart in relation to the causation issue. He indicated that in his opinion the BSA should reconsider in the light of this opinion.[65]The BSA was dissatisfied with this opinion and, as it was entitled to do, made further submissions in February 2017. In relation to the causation issue it contended that:(a) Dr Simpson had considered all of the matters relied upon by Dr Stewart and, having done so, concluded that it was not possible to state exactly where and when the infected mosquito bite occurred;(b) it was not open to the adjudicator to conclude that Dr Simpson’s opinion was unreasonable;(c) it followed that there was no basis to treat its decision, adopting Dr Simpson’s opinion, as perverse. The adjudicator having considered this submission and Dr Stewart’s further submission issued a revised opinion in March 2017. In his revised opinion the adjudicator found against him on the causation issue. In particular, the adjudicator was influenced by: (a) what he considered to have been Dr Stewart’s failure to provide any evidence of his itinerary to support his case as to having travelled post conference in areas not susceptible to dual transmission of both viruses through one mosquito bite (although it is now fairly accepted by Mr Halliday that he was in error in reaching that conclusion, since Dr Stewart had indeed provided evidence of his itinerary); (b) the absence of any contemporaneous medical evidence to corroborate Dr Stewart’s account of when his symptoms first began or giving a professional opinion as to when he was most likely to have contracted the infections; (c) the fact that Dr Simpson, having considered Dr Stewart’s submissions, had reached the conclusion that the available medical evidence did not establish that on balance he acquired the infections at the conference and that he was not in a position to conclude that this assessment was legally flawed.[66]Dr Stewart did not accept that opinion and sent a further submission to the adjudicator in April 2017 enclosing two medical reports, one from Dr Vilar the consultant physician in infectious diseases who treated him in 2010. The BSA responded in June 2017, referring to the fact that these reports had not been obtained previously and also to Dr Stewart’s failure to produce the contemporaneous medical records referred to by Dr Vilar in his report. It suggested that a sensible way forward was for the adjudicator to determine the employment issue, on the basis that if he agreed with the BSA then he could proceed to a final determination without having to consider further the causation issue, whereas if he agreed with Dr Stewart the BSA would refer the further information provided to its medical advisers and then respond in relation to both the causation and the employment issue before the adjudicator proceeded further.[67]There is no evidence as to what, if any, response the adjudicator made to this suggestion. There is no evidence that either Dr Stewart or the adjudicator or the Pensions Ombudsman agreed to proceed on this basis. Instead, it is clear that the matter was simply passed to the Pensions Ombudsman for him to produce a final determination.[68]In his Determination produced on 18 October 2017 the Pensions Ombudsman, Mr Anthony Arter, rejected Dr Stewart’s complaint. Since it has been the subject of some criticism by Ms Keogh on behalf of Dr Stewart I shall have to refer to the determination in some detail.[69]The Pensions Ombudsman summarised the case and the respective submissions in paragraphs 4 to 18 inclusive. Having referred to and summarised the adjudicator’s opinion in paragraphs 19 to 20 inclusive he continued, in paragraphs 21 to 29 inclusive, to set out his reasons and his decision not to uphold Dr Stewart’s complaint.[70]It is clear that the Pensions Ombudsman did not in terms address or decide the causation issue in paragraphs 21 to 29. Instead in these paragraphs he decided the case against Dr Stewart solely by reference to the employment issue. In paragraph 19 he summarised the adjudicator’s opinion in relation to the causation issue and in paragraph 20 he said this:
“20. Dr Stewart did not accept the adjudicator’s opinion and the complaint was passed to me to consider. Dr Stewart provided further comments which do not change the outcome. I agree with the adjudicator’s opinion, summarised above, and will therefore only respond to the key points made by Dr Stewart for completeness. In summary these are: (a) Whilst Dr Simpson mentioned that he had not provided any contemporaneous medical evidence relating to when the symptoms of the infection started, he acknowledged his testimony that they had begun two days after the conference ended. Dr Simpson commented that, if this is the case, then it is likely, on balance, that he sustained the infections during the conference, bearing in mind their incubation periods. (b) Dr Stewart obtained a report dated 24 April 2017 from his treating consultant, Dr Vilar, which indicated that the acute phase of the infections had ended more than two weeks before hospital tests were carried out on 23 November 2010, i.e. around 9 November 2010. As such, the acute phase must have occurred over the preceding week, i.e. from around 2 November 2010, during the conference.” (a) Whilst Dr Simpson mentioned that he had not provided any contemporaneous medical evidence relating to when the symptoms of the infection started, he acknowledged his testimony that they had begun two days after the conference ended. Dr Simpson commented that, if this is the case, then it is likely, on balance, that he sustained the infections during the conference, bearing in mind their incubation periods. (b) Dr Stewart obtained a report dated 24 April 2017 from his treating consultant, Dr Vilar, which indicated that the acute phase of the infections had ended more than two weeks before hospital tests were carried out on 23 November 2010, i.e. around 9 November 2010. As such, the acute phase must have occurred over the preceding week, i.e. from around 2 November 2010, during the conference.”
[71]However, as Ms Keogh submits, the Pensions Ombudsman did not in the remainder of his determination respond to or address those two further points. That is notwithstanding that in paragraph 21 he said that:
“the medical evidence becomes material to the outcome of the complaints if it is accepted that on balance Dr Stewart was attending the conference in the course of his role with the Trust”
. Ms Keogh submits that the Pensions Adjudicator appeared to be proceeding on the basis that he only needed to address the points made by Dr Stewart in relation to the causation issue if he agreed with him on the employment issue, which he did not. Accordingly, she submits, it is entirely unclear on what basis the Pensions Ombudsman rejected these two points, assuming that it can be inferred from paragraph 20 that he did indeed do so.[72]Since, as I have said, s.151(1) of the Pensions Act obliges the Pensions Ombudsman to provide a written statement of his determination which must contain the reasons for his determination, Ms Keogh submits that the decision on the causation issue cannot stand on that basis alone and that the appeal on the causation issue must succeed on ground eight alone.[73]It is unclear why the Pensions Ombudsman failed to set out his response to those two key points in his written determination. It is possible that he had adopted the approach suggested by the BSA in its June 2017 letter, although that would appear inconsistent with paragraph 20 of his decision. It is also possible that he had intended to do so after addressing the course of employment issue but did not in fact do so because in his view it was unnecessary, given his determination on the employment issue. That would be consistent with what he said in paragraph 21 although inconsistent with paragraph 20. A further possibility is that he intended to do so in order to explain and expand upon his decision under paragraph 20 but omitted to do so through simple error on his part. That does appear to me to be the most likely explanation. It is unfortunate that neither Dr Stewart nor the BSA wrote to the Pensions Ombudsman upon receipt of his determination asking him to provide an explanation or to provide further reasons in relation to these two points.[74]Returning to the written determination, the Pensions Ombudsman proceeded from paragraph 21 onwards to address the employment issue argument under regulation 3(2).[75]He began by stating, in paragraph 21, that:
“it is essential to note that regulation 3(2)(a) of the Regulations says that TIA can only be awarded where the injury is sustained in the course of the members NHS employment”
. Ms Keogh criticises this opening statement on the basis that it ignores the duties of employment gateway which, she reminded me, Dr Stewart had expressly relied upon in addition to the course of employment gateway in his submission to the Pensions Ombudsman.[76]In paragraph 22, the Pensions Ombudsman referred “as a starting point” to the WTR. He then referred in paragraph 23 to the decision in the case of Edwards and decided in paragraph 24 that the definition in paragraph (a) of the WTR, namely “any period during which he is working, at his employer’s disposal and carrying out his activity or duties” was not satisfied in this case whilst Dr Stewart was attending the conference.[77]He did not, as Ms Keogh observes, address the alternative argument that it was a period during which Dr Stewart was receiving relevant training.[78]In paragraph 25 he addressed the distinction, as he saw it, between professional leave and time spent working. He said this:
“Fundamentally, professional leave is not time spent working. It is an agreement by the employer, upon application, for leave of absence from work to do something which benefits the individual, and also often the employer. If, hypothetically, Dr Stewart had been asked by the Trust to give a speech as a regular part of his work role, or even if he had been invited to give one and the Trust had seen it as part of his role and agreed, he would not have required professional leave to attend. He would simply attend as part of his regular work week.”
[79]In paragraphs 26 and 27 he said that this reason was further reinforced by clause 16(iii) of Schedule 18 of the 2003 Consultants Terms which, as I have said, entitled the Trust to require any period of professional or study leave with pay exceeding three weeks as being treated as annual leave as to one half of the excess. He reasoned that if the employee was treated as working whilst on professional leave, it would have been unlawful for the employer to require an employee to treat his working time as annual leave.[80]He therefore concluded, in paragraph 27, that: “I conclude that professional leave cannot be considered to entail work time within the meaning of the 2003 Consultant Terms and Conditions of Employment. It follows that Dr Stewart cannot reasonably be said to have attended the conference in the course of his NHS employment”.[81]Ms Keogh submits that the reasoning in paragraphs 22 to 27 inclusive appears only to address the argument based on the WTR. She submits that the Pensions Ombudsman nowhere specifically addressed any alternative argument, specifically either that based on the course of employment gateway, whether by reference to the authorities on vicarious liability relied upon by Dr Stewart or otherwise, or the duties of employment gateway. Mr Halliday submits that it is apparent from paragraph 25 that the Pensions Ombudsman was considering the employment issue on the wider basis. Ms Keogh submits that even if that is so, it does not expressly address both the course of employment and the duties of employment gateways. She also submits that the reinforcing conclusion derived from clause 16(iii) was erroneous.[82]I now turn to address those issues. E. The proper construction of regulation 3(2) of the Injury Benefit Regulations[83]Although I have already referred to part of regulation 3(2) it is worth setting it out more fully here:
“(2) This paragraph applies to an injury which is sustained and to a disease which is contracted in the course of the person’s employment and which is wholly or mainly attributable to his employment and also to any other injury sustained and, similarly, to any other disease contracted, if— (a) it is wholly or mainly attributable to the duties of his employment; (b) it is sustained while, as a volunteer at an accident or emergency, he is providing health services which his professional training and code of conduct would require him to volunteer; or (c) it is sustained while he is travelling as a passenger in a vehicle to or from his place of employment with the permission of employing authority and if in addition— (i) he was under no obligation to the employing authority to travel in the vehicle but, if he had been, the injury would have been sustained in the course of, and have been attributable to, his employment, and (ii) at the time of the injury the vehicle was being operated, otherwise than in the ordinary course of a public transport service, by or on behalf of the employing authority or by some other person by whom it was provided in pursuance of arrangements made with the authority …” (a) it is wholly or mainly attributable to the duties of his employment; (b) it is sustained while, as a volunteer at an accident or emergency, he is providing health services which his professional training and code of conduct would require him to volunteer; or (c) it is sustained while he is travelling as a passenger in a vehicle to or from his place of employment with the permission of employing authority and if in addition— (i) he was under no obligation to the employing authority to travel in the vehicle but, if he had been, the injury would have been sustained in the course of, and have been attributable to, his employment, and (ii) at the time of the injury the vehicle was being operated, otherwise than in the ordinary course of a public transport service, by or on behalf of the employing authority or by some other person by whom it was provided in pursuance of arrangements made with the authority …”
[84]I should also refer to part of regulation 3(3):
“(3) These Regulations shall not apply to any person in relation to any injury or disease wholly or mainly due to, or seriously aggravated by, his own culpable negligence or misconduct.”
[85]It is clear that for the course of employment gateway to be satisfied the claimant must establish that the disease:(1) was contracted in the course of his employment, and(2) was wholly or mainly attributable to his employment.[86]It is also clear that for the duties of employment gateway to be satisfied the claimant must establish simply that the disease is wholly or mainly attributable to the duties of his employment.[87]Before delving into the authorities it is worth making some preliminary observations.[88]First, these are plain words which are not expressly defined in the Regulations. They should be read fairly and given their common and ordinary meaning in the context of the Regulations as a whole and regulation 3 in particular.[89]Second, some significance must be attached to the fact that two separate requirements must be satisfied in relation to the course of employment gateway whereas only one must be satisfied in relation to the duties of employment gateway. It is not enough for a disease to have been contracted in the course of employment unless it is also wholly or mainly attributable to his employment. It is however sufficient for it to have been wholly or mainly attributable to the duties of his employment. It is apparent from the structure and language of regulation 3(2) that the duties of employment gateway is, like the gateways in 3(2)(b) and (c), intended to apply in circumstances where the disease was not contracted in the course of his employment.[90]That suggests to me as a matter of wording and construction that the course of employment gateway is intended to apply where there is a temporal connection between the contraction of the disease and the course of employment as well as a causal connection, whether in whole or in part, between the contraction of the disease and the employment, whereas all that is required of the duties of employment gateway is that there should be a causal connection between the contraction of the disease and the duties of employment. As Mr Halliday suggested, one can see for example that the duties of employment gateway would apply where a former employee contracts an industrial disease many years after exposure to a hazardous substance whilst at work, whereas the course of employment gateway would not, because the disease itself was not contracted in the course of employment even though it was wholly or mainly attributable to employment. This is consistent with what Hale L.J said in re R. (WF: Paternity of Child) [2003] 2 W.L.R. 1485 at [22] that: "The natural and ordinary meaning of the expression 'in the course of is 'during' or 'at a time when'".[91]It also suggests to me that the meaning of “course of employment” and “attributable to employment” should have a wider meaning than “attributable to duties of employment”, since otherwise every case which fell within the duties of employment gateway would also fall within the course of employment gateway. Moreover, as Ms Keogh observed, there is no need to adopt a limited construction to avoid payment of benefit in undeserving cases, since that is covered by regulation 3(3) as referred to above.[92]There are, it would appear, no previous decided cases concerning the meaning and effect of regulation 3(2). I have however been referred to a number of authorities which are said to be of some assistance. I begin with those said to be relevant to the meaning of “course of employment”.[93]In R v National Insurance Commissioner ex parte Michael [1977] 1 WLR 109 the Court of Appeal had to consider the correct construction of “in the course of his employment” in the context of a claim for industrial benefit by a police constable injured whilst playing football for his police force. The claim was brought under s.5 National Insurance (Industrial Injuries) Act 1965, which provided that:
“Subject to the provisions of this Act, where an injured person suffers personal injury caused after July 4, 1948, by accident arising out of and in the course of his employment, being insurable employment, then — (a) industrial injury benefit (in this Act referred to as ‘injury benefit’) shall be payable to the insured person if during such period as is hereinafter provided he is, as the result of the injury, incapable of work; …”
[94]It was held that the constable could not make a claim on the ground, as summarised in the headnote, that:
“Although the words “in the course of his employment” in section 5 (1) of the Act of 1961 should be broadly construed, they must be interpreted to mean that for an injury to qualify for industrial benefit it must have been sustained in the course of the work which the injured person was employed to do, or be reasonably incidental to that work; and on the facts found the playing of football was not part of the applicant's work as a police constable, nor was it “reasonably incidental” to that employment, so that the commissioner had applied the correct test and reached the correct conclusion.”
[95]The Court of Appeal held that since the words “reasonably incidental to the employment” were not part of the statutory provisions but were a judicial gloss on those words they should be applied only in cases where the injury was suffered by reason of some event incidental to the work which the employee was engaged to do.[96]Whilst it would be possible to quote extensively from the judgments, of most relevance to the facts of this case are the comments of Lawton LJ at p.121D-E about training:
“A police constable … from time to time … will probably be sent by his chief constable on training courses. During such training he may be required by those in authority over him to undertake hazardous tasks which are far removed from what is envisaged to be the ordinary work of a police constable and which many people would regard as recreational activities. For example, a police cadet … may be sent on a mountaineering course … in order to prepare him for the all too frequent police task of rescuing holidaymakers from cliffs. Many police constables … attend driving courses which include activities like those undertaken for recreation by rally drivers. Such training courses would, in my judgment, be reasonably incidental to the performance of constabulary duties and police constables can properly be said to be employed to undertake them. The fact that they include activities which many persons would regard as recreational would not make them any less constabulary duties.”
[97]Mr Halliday submits that the essential difference between those hypothetical examples and the present case are that Dr Stewart was not required to attend the conference by the Trust. I shall have to consider in due course whether that makes a difference.[98]I was also referred to the subsequent decision of the Court of Appeal in the factually similar case of Faulkner v the Chief Adjudication Officer [1994] PIQR 244. Of relevance is the analysis of the question by Hoffman LJ at p.256 where he observed that there were two different questions to be considered:
“An office or employment involves a legal relationship: it entails the existence of specific duties on the part of the employee. An act or event happens “in the course of” employment if it constitutes the discharge of one of those duties or is reasonably incidental thereto: Smith v. Stages [1989] A.C. 928. It follows that there are always two separate questions. The first involves deciding what the employee's duties were. As Lord Thankerton crisply put it in Canadian Pacific Railway Co. v. Lockhart [1942] A.C. 591, 600: “the first consideration is the ascertainment of what the servant was employed to do.”
The second question is whether the act or event was in the discharge of a duty or something reasonably incidental thereto. The first question is an exercise in interpretation. It uses the familiar techniques of contractual (or statutory) interpretation: the construction of express terms and the ascertainment of implied terms; not pedantically but in the light of all surrounding circumstances including the social setting. A good illustration will be found in the judgment of Scott J. in Sim v. Rotherham Metropolitan Borough Council [1987] Ch. 216. The second question is a problem of characterisation: it involves looking at an act or event and saying whether or not it can fairly be called the discharge of a duty of the office or employment or something reasonably incidental thereto. There will be many cases in which only one of those questions will present any difficulty. In some cases, once the duties of the employment have been determined, it will be obvious whether or not the act in question can be characterised as being within the course of that employment. In other cases, there will be no difficulty about saying what the employee was employed to do but serious doubt over the characterisation of the act in question”.[99]At p.257 he said, memorably, that:
“But “reasonably incidental” is a slippery expression unless one is very clear about what the act in question has to be incidental to. It has often been pointed out that in one sense, getting to work in the morning is reasonably incidental to any kind of employment. Nevertheless, there is no doubt that one is not in the course of one's employment merely because one is on the way to work. The act must be reasonably incidental to the actual work one is employed to do—not merely to the larger concept of being employed. Travelling to work cannot be called an activity incidental to digging coal or operating a word processor and is therefore not in the course of employment. Likewise, if playing football was not in itself a duty of Mr Faulkner's employment, there was no other duty to which it could plausibly have been reasonably incidental.”
[100]It does not appear that in either case the Court of Appeal was asked to or did address the issue as to the construction of the requirement that the accident must also have been one “arising out of … his employment” as well as being in the “course of his employment”. There was no separate argument, for example, that even if the police constable had been acting in the course of his employment when playing football nonetheless the accident did not arise from his employment because anyone, police constable or otherwise, could suffer an accident whilst playing football. It is worth noting however that in ex p Michael Roskill LJ observed at p.119H that:
“If the applicant’s submissions [that he was acting in the course of his employment whilst playing football] are correct, and he had the misfortune to be attacked by a wasp or by some ferocious bird and thus injured, he could then have claimed industrial injury benefit under section 10(b) of the Act of 1965”
. That suggests to me that Roskill LJ must have considered that it would not have been possible in such a hypothetical case to have refused benefit on the ground that the injury did not arise out of his employment even if it did arise in the course of his employment.[101]As I have said the Pensions Ombudsman was also referred to the WTR and to cases concerning the approach to vicarious liability at common law on the basis that they were relevant to the approach under paragraph 3(2). Both Ms Keogh and Mr Halliday also referred me to the WTR and to the vicarious liability cases although neither suggested that they were determinative. As is well known, the WTR implement the EU Working Time Directive and regulate the working times which workers may work. They include provision in regulation 13 for minimum entitlement to annual leave. The definition of working time includes:(a) Any period during which he is working, at his employer’s disposal and carrying out his activity or duties,(b) Any period during which he is receiving relevant training.[102]As to the former, the decision in Edwards v Encirc concerned a complaint by employees that they had not been afforded a sufficient rest period between work on the basis that attending a health and safety meeting and a trade union meeting, both authorised and both held on site, constituted work. The Employment Appeal Tribunal (HHJ Eady QC) agreed, holding that although the definition in(a) required each of the three stated elements to be satisfied, adopting a purposive approach to the WTR they were satisfied in that: (a) the meetings were at least in part to the employer’s benefit;(b) the employees were in a broad sense at the employer’s disposal whilst attending the meetings;(c) it was not necessary for the employees to be undertaking their contractual or normal working duties. Whilst the correctness of the particular decision cannot be doubted, it does not seem to me that the authority establishes or confirms any principle which is of any real assistance to me in deciding the employment issue.[103]As to the latter, relevant training is defined to include “training for employment” other than training —(a) the immediate provider of which is an educational institution or a person whose main business is the provision of training, and(b) which is provided on a course run by that institution or person.[104]There is no definition of “training for employment”. Its meaning seems to me to be consistent with the examples given by Lawton LJ in the ex p Michael case discussed above. It is unlikely, I would have thought, that it could be construed as extending to attending at a conference such as that which Dr Stewart attended in Surat in 2010 but again that does not seem to me to help one way or another in deciding this case.[105]In summary, I do not gain any real benefit from the WTR nor, in my view, could the Pensions Ombudsman properly have regarded the answer to the question as to whether or not Dr Stewart was at work for the purpose of the WTR as determinative of the employment issue which was before him one way or another.[106]I reach the same conclusion in relation to the reliance placed by Dr Stewart on the cases concerning the approach to vicarious liability at common law. As is well known, it was established in the landmark sexual abuse case of Lister v Hesley Hall Ltd [2002] 1 AC 215 that the employer would be vicariously liable for the abuse perpetrated by the employee if there was a sufficient connection between the work the employee was employed to do and the acts committed by the employee. That was a much wider test to that previously applied. Mr Halliday submitted that there was no basis for applying that test to regulation 3(2). By way of analogy he referred me to the decision of the Court of Appeal in Jones v Tower Boot Co Limited [1977] ICR 255 in which it was held that the common law vicarious liability approach should not be applied to the provisions of the Race Relations Act 1976 in the context of the issue as to whether or not racially abusive conduct by fellow employees had been committed in the course of their employment. However Ms Keogh submitted that nonetheless a broad test was applied in the discrimination context and, in support, she referred me to the decision of the Employment Appeal Tribunal in Chief Constable of Lincolnshire Police v Stubbs [1999] ICR 547 in which it was held that an employment tribunal had been entitled to find that attendance at work related social functions fell within the meaning of “in the course of employment” for the purposes of vicarious liability for sex discrimination. These cases seem to me to be so far removed from the questions the Pensions Ombudsman had to consider and which I have to address as to provide me with no real assistance either way.[107]As regards the phrase “duties of employment” Mr Halliday referred me to another police case, R (Stunt) v Mallett [2001] ICR 989, in which the Court of Appeal held that a police officer who was permanently disabled by depression caused by disciplinary proceedings brought against him had not suffered that illness “in the execution of his duty as a police officer” within the meaning of the Police Pensions Regulations 1987. I do not regard that case as providing any real assistance to me, since it seems to me to turn on an analysis of the particular phrase in question, which is very different to the wording of regulation 3(2) in this case, in the specific context of the position of a police officer and the particular facts of the case. However in that case Simon Brown LJ also cited with approval at [17] an illuminating analysis of earlier cases in relation to those Regulations conducted by Richards J (as he then was) in R v Kellam ex p South Wales Police Authority [2000] ICR 632 which I have found of assistance in relation to general principles.[108]Finally, Mr Halliday referred me to two decisions of the Upper Tribunal (Administrative Appeals Chamber) as regards the meaning of “attributable” which it is convenient to consider at this point.[109]The first is the decision of a three judge panel Upper Tribunal (UT), comprising Charles J (the then Chamber President), Judge Rowland and Judge Lane (as he then was), in JM v Secretary of State for Defence [2016] AACR 3. This was an appeal from the First-tier Tribunal (FTT) itself involving an appeal from a decision of the Secretary of State rejecting the appellant’s claim under the Armed Forces Compensation Scheme (AFCS). The appellant claimed that he had suffered from depression due to bullying by other soldiers but his claim was rejected on the basis that the depression was caused by multiple factors. In order to succeed the appellant had to show that his depression was “caused (wholly or partly) by service” and, if partly, that service was the “predominant cause”. This provision replaced earlier war pensions instruments which had used the phrase “attributable to service”.[110]In paragraph 80 the UT said that “attribution” means something that is capable of bringing about an outcome, or can be regarded as bringing it about, or can explain an outcome. They stated that “Whether something is capable of, or regarded as bringing about a particular result involves a degree of judgment which is not generally required in straightforward cases of physical cause and effect; for example, where A punches B on the nose which then bleeds”. In paragraphs 87 and 88 they stated that they agreed that there was no difference between the old test based on “attributable” and the new test based on “caused by”.[111]They also explained the proper approach to be taken as follows:
“81. Also the language of the test identifies “service” as the cause or predominant cause. But, like “negligence” or “employment”, “service” is an abstract concept whilst “injury” is caused by one or more events or processes acting on the body or mind. 82. So in identifying the abstract cause of an injury it is necessary, as a matter of language and concept, to identify the events or processes – which we shall call the “process cause or causes” of the injury – and then to ask whether it is, or they are, sufficiently linked to service to satisfy the test that the injury due to each process cause is caused by service (or, using a shorthand, that that process cause is a service cause). Our use of the description “process cause or causes” is merely that and nothing else should be read into it. 83. Deciding whether a process cause is a service cause is an exercise of attribution, and so, of categorisation. 84. After that identification of causes and categorisation has taken place, the AFCS Orders introduce a new and further step. This is the “predominancy” test.”
[112]This approach was adopted and applied by Upper Tribunal Judge Wilkeley in JH v SSD [2017] UKUT 0140 (AAC). In that case a former flight sergeant in the RAF was struck by a car whilst walking home to his overnight accommodation in a Spanish port in the course of a military operation to transport military equipment from Morocco to Spain. He held that the injury was not caused wholly or predominantly by service, on the basis that an accident of that type could have happened to anyone walking along that road at that time and that his service was simply the setting as opposed to the sole or predominant cause. I do not discern any statement of principle in this decision which goes above and beyond the approach in JM, nor do I regard reference to the actual decision based on the actual facts of that case as of any relevance to the instant appeal.[113]However it is worth noting, as the UT Judge did at [94] by reference to what was said by UT Judge Mesher in a previous case, that there was no equivalent requirement under the ACFS to the “course of employment” requirement under other statutory injury benefit provisions. It seems to me, therefore, that it would not be safe to import wholesale the approach adopted by the Upper Tribunal to the specific requirement of the AFCS in those cases to the attribution requirement of paragraph 3(2) of the Injury Benefit Regulations in relation to the course of employment gateway, since under the AFCS the “attribution” question is the sole question whereas under the course of employment gateway it is only one of two separate questions.[114]On the basis of those authorities in my view the proper construction of and approach to regulation 3(2) in a case such as the present is as follows:(1) The first step is to identify the disease in question contracted by the employee (the “process cause” as described in JM).(2) The second step is to identify the employee’s contractual duties by reference to his contract of employment.(3) The third step is to ask whether the disease was contracted in the course of his employment. That involves considering whether the disease was contracted at a time when the claimant was in the process of performance of activities which were part of his contractual duties, including activities reasonably incidental to those contractual duties.(4) If the answer to (3) is yes, then the fourth step is to ask whether the employment was the whole or main cause of the disease being contracted. This is an enquiry as to the reasons why the disease was contracted and whether the sole or predominant reason was a reason to do with the employment. The focus seems to me to be upon considering whether or not the disease, although contracted whilst in the course of employment, was contracted for a reason extraneous to his employment or unconnected to his employment. A reasonably straightforward example would be where an employee was permitted to bring and consume her own food at work and contracted a disease through eating infected food whilst working at her desk. There would be no causative link between the disease and the employment. There will be other cases, such as the present, where a decision will have to be made by reference to all of the circumstances as to whether the causative link is established. One can envisage a number of similar examples. One would be where an employee is exposed to an infectious disease, whether through contact with a fellow employee or a member of the public, whilst working either at work premises to which the public also have access or at premises owned or controlled by a third party where she is performing her duties of employment. Another, developing the examples given by Roskill LJ in ex p Michael, would be where at a similar time and place an employee was stung by a wasp and suffered anaphylactic shock or was attacked by a seagull and contracted an infectious disease. It would appear that Roskill LJ would have regarded these as arising out of his employment and for my part I would as well.(5) If the answer to (3) or (4) is no, then the fifth step is to ask whether the duties of employment were the whole or main cause of the disease being contracted. Again this is an enquiry as to the reasons why the disease was contracted and whether the sole or predominant reason was a reason to do with the duties of employment. This is therefore at one level a wider enquiry, because there is no need to ask whether the disease was contracted at a time when the claimant was in the process of performance of activities which were part of his contractual duties or reasonably incidental to them, but at another level a narrower enquiry, because there is a need to ask whether the sole or predominant reason was a reason to do with the duties of employment, as opposed to employment in its wider sense. F. The employment issue[115]As to ground one of the appeal, it is clear from [5] and [21] of the Determination that the Pensions Ombudsman referred only to the course of employment gateway and not to the duties of employment gateway. There is no indication anywhere in the Determination that he gave separate consideration to the duties of employment gateway. Given that Dr Stewart had expressly raised and argued his case under both gateways the Pensions Ombudsman ought in my view to have dealt with the case under both gateways. Thus in my view this ground is made out. It would only be immaterial if it could be said that the argument founded on the duties of employment gateway added nothing on the facts of this case to the argument founded on the course of employment gateway or was bound to fail either by reason of the conclusions already reached by the Pensions Ombudsman or otherwise on the undisputable evidence.[116]As to ground two of the appeal, it is clear from what I have already said that in my view the Pensions Ombudsman would not have been justified in answering the employment issues solely by reference to whether Dr Stewart would have been classed as working under the WTR when attending the conference. It is not altogether easy to discern whether the Pensions Ombudsman did in fact decide the employment issue solely by reference to the WTR. In [22] of the Determination he referred to the WTR as a “starting point” and he plainly addressed the WTR issue solely in [23] and [24]. In [25] he identified what seemed to him to be the fundamental reason why Dr Stewart was not working, which was the difference between working time and professional leave. In [26] and [27] he explained why his view in that regard was fortified by paragraph 16(iii) of Schedule 18 to the 2003 Consultant terms. All of this reasoning is clearly directed, in my view, to the position under the WTR. There is no separate identification or consideration of Dr Stewart’s terms or duties of employment or the separate requirements of the course of employment gateway. Whilst it can be argued that the conclusion at [27] to the effect that “professional leave cannot be considered to entail work time within the meaning of” the 2003 Consultants Terms is different to and wider than a conclusion that professional leave was not work time within the WTR, nonetheless it is difficult to discern any analysis going beyond the analysis under the WTR for reaching that conclusion.[117]Again in my view the Pensions Ombudsman ought to have dealt with the case under the course of employment gateway by reference to the wider arguments going beyond the WTR and that he did not do so, at least expressly. Again therefore in my view this ground is made out and again it would only be immaterial if it could safely be said that such arguments were bound to fail either by reason of the conclusions already reached by the Pensions Ombudsman or otherwise on the undisputable evidence.[118]As to ground three of the appeal, it is said that the conclusions in relation to the WTR were perverse. Given the view I have already taken that the answer in relation to the WTR is not conclusive or indeed of any material assistance in answering the employment issue under the Injury Benefit Regulations it does not seem to me to be either necessary or profitable to address this ground. The same is true as regards ground four and the reliance placed on paragraph 16(iii) in the context of the WTR as well as ground five (b) being the reliance placed on the “relevant training” provision under the WTR which I have considered above.[119]As to ground five, the complaint as to the adequacy of the reasons given, as I have already said the Pensions Ombudsman was obliged under s.151(1) of the Pension Schemes Act 1993 to state the reasons for his determination. I was referred me to Meek v City of Birmingham District Council [1977] IRLR 250 where the Court of Appeal said, in relation to a decision of an employment tribunal, that whilst it was not required to be an elaborate formalistic product of refined legal draughtsmanship, nonetheless it should contain a sufficient account of the facts and of the reasoning to enable an appellate court to see whether any question of law arises. Mr Halliday submitted that the Determination complied with that requirement.[120]In my view that would only be the case if it could be said that the Determination was correct as a matter of law in determining that because Dr Stewart attended the conference on professional leave at his request he could not have been in the course of his employment.[121]The answer to that question involves a consideration of the terms of Dr Stewart’s employment and a consideration of his duties under his employment. By reference to the provisions to which I have referred above in my view the position is as follows:(1) Dr Stewart’s core contractual duties were as set out in his Job Description and Job Plan. He was required to undertake 10 programmed activities (of 4 hours each) per week comprising 9 clinical programmed activities and 1 non-clinical programmed activity. The non-clinical programmed activity could include undertaking continuing medical education and thus could include complying with CPD obligations as well as teaching and other non-clinical responsibilities. However there was no contractual obligation on Dr Stewart to ensure that he used the time allocated to this non-clinical programmed activity in any specific way save as expressly identified in the duties of the post – for example the in-house teaching responsibility referred to in the Job Plan. In particular there was no contractual obligation to structure his time so as to ensure that he complied with all of his CPD obligations within this allocated work time.(2) In addition to these core contractual duties there were other duties reasonably incidental or consequential to those duties, as recognised by the definition of “Contractual and Consequential Services”. These would include undertaking continuing medical education, including complying with CPD obligations, as well as teaching and other non-clinical responsibilities, insofar as not undertaken within the 1 non-clinical programmed weekly activity.(3) Importantly, it was recognised by the Trust especially in its Study Leave Policy that the performance of all of these non-clinical responsibilities might not be capable of performance within the 1 non-clinical programmed weekly activity. Hence, in addition to the annual leave entitlement there was also a provision for study and professional leave, for study and professional purposes relating to supporting programmed activities, which the Trust both recognised and supported. Whilst there was no absolute contractual right to such professional or study leave nonetheless consultants had an expectation of entitlement to paid professional or study leave of up to 30 days every 3 years within the UK and a discretionary entitlement to further professional or study leave within the UK or to professional or study leave outside the UK which might be on a fully paid, part-paid or wholly unpaid basis.(4) Consultants would have to apply for professional and study leave and not take it without approval. Where professional or study leave was granted on a paid basis there was a restriction on what the consultant could do in terms of paid work within that period. In relation to the discretionary entitlement the employer would be entitled if considered appropriate to require part of any such leave to be counted against annual leave. Subject to this, however, there was no fundamental difference in principle between study or professional leave granted under paragraph 13 and that granted under paragraphs 14 or 15.(5) It is clear that a consultant could not be required to undertake professional or study leave against his will, whether generally or in relation to any specific activity. It is equally clear however that if a consultant did not do so and therefore did not comply with his contractual duties in relation to continuing medical education (because he did not do so within his 1 non-clinical programmed weekly activity) then he would be in breach of his duties of employment. Indeed, as was envisaged by the Study Leave Policy, a consultant would need to undertake continuing medical education away from his normal place of employment, whether within or – more likely – outside the 1 non-clinical programmed weekly activity, in any event.[122]In my view it follows from this analysis that the Pensions Ombudsman was, with respect to him, in error in paragraph 25 of his Determination in seeking to draw a fundamental distinction between professional leave and time spent working. He failed, it seems to me, to appreciate that in the case of a skilled professional such as Dr Stewart, working under the 2003 Consultants Terms, there was no such hard-edged dividing line between professional leave and working time. In principle there is no good reason why a consultant, taking professional or study leave with the consent of his employer on a paid basis to undertake continuing medical education, particularly with a view to meeting his CPD requirements, should not be engaged in the performance of his contractual duties whilst undertaking such activities. That would include attending a professional conference on a subject to do with his contractual clinical field on a paid basis and with the consent of the Trust. It would also, in my view, include attending a professional conference to lecture or to teach on a subject to do with his contractual clinical field on a paid basis and with the consent of the Trust. It does not matter at all in my judgment that the consultant could not have been required to do so, whether at all or in relation to a particular event and, instead, that he volunteered to do so. It is sufficient that his attendance at the event in question was, on an objective analysis, part of the performance of his contractual duties.[123]Whilst I accept that each occasion of professional or study leave would have to be considered on its individual facts to see whether or not he was performing his contractual duties, nonetheless if the leave was requested and approved in order for the consultant to attend a conference on a subject to do with his contractual clinical field, whether solely as a delegate to secure CPD points, or for lecturing or teaching at or otherwise participating in the conference, or for a mixture of such purposes, and if the Trust approved it on a paid basis and did not require it to be counted in whole or in part towards annual leave, those facts would in my view be a strong indicator that attending the conference was part of the performance of his contractual duties. Again this is a recognition of the wider ambit of the role which a consultant such as Dr Stewart was employed to undertake and a recognition that a consultant would have considerable freedom to decide for himself – subject always to the approval of the Trust - how he would perform his wider non-clinical duties. It would be wrong to apply the same approach to Dr Stewart as would be applied for example to a police constable whose duties were very specifically delineated and who would almost always be acting under the direction of his commanding officer.[124]With respect to the Pensions Ombudsman’s view as expressed at [25] of the Determination, I doubt that on a strict contractual analysis Dr Stewart could have been asked by the Trust to give a speech as a regular part of his work role, if by that he meant that the Trust could have required him to do so, save insofar as it fell within the specific duties set out in the Job Plan - such as the regional and in-house teaching programmes referred to, which would form part of his programmed activities in any event. I also doubt that if he had been asked to give a speech and had agreed to do so and if the Trust had agreed to his doing so that it would not have been taken as professional or study leave, unless it was for example a short speech given at the Children’s Hospital which could without difficulty have been fitted into the one weekly non-clinical programmed activity.[125]Moreover, it does not seem to me that paragraph 16(iii) of Schedule 18 to the 2003 Consultants Terms is of any relevance, save insofar as it might well be said that if a consultant asked for discretionary leave and it was granted but only on condition that part was taken as annual leave in accordance with that sub-paragraph that this might well point to it not being part of the performance of his contractual duties.[126]In my judgment on the undisputed facts of this case there is only one answer to the employment issue, which is that Dr Stewart was attending the conference in the course of his employment. As the undisputed evidence referred to above demonstrates, he was invited to participate in this conference, which was fairly and squarely within his contractual clinical field, as a speaker, panellist, debate participant and workshop facilitator and he accepted on the basis that he would also attend other sessions to further his own education. It is also clear that this fell fair and square within his contractual duties in relation to continuing medical education and permitted – indeed encouraged - activities in relation to lecturing or teaching regardless of whether or not that carried CPD points. The Trust agreed to his attending and taking it as professional and study leave on a paid basis. There was no suggestion of his being required to take any part of the conference as annual leave. It is irrelevant that it was in India as opposed to the UK, given that paragraph 15 of Schedule 18 to the 2003 Consultants Terms allowed him to request and the Trust to grant professional and study leave outside the UK on a paid basis. Having been granted leave on a paid basis he was prohibited from undertaking any other paid work without the Trust’s agreement and there is, of course, no suggestion that he did any other work whilst attending the conference, let alone paid work.[127]Whilst, in the circumstances, it is unnecessary for me to decide this question on the basis that even if Dr Stewart was not performing his contractual duties when attending the conference it was nonetheless reasonably incidental to such performance, I would in any event decide the case on this basis if I had to do so. If, for example, and contrary to my analysis, it is only the performance of the 10 weekly programmed activities which are properly to be regarded as the duties which Dr Stewart was contracted to perform, I would have held that attending this conference in the circumstances set out in the previous paragraph was reasonably incidental to those contractual duties. That would be on the basis that by reference to the particular terms of Dr Stewart’s employment it was clearly envisaged that the non-clinical duties could be performed either as part of the programmed activity or outside of it as study and professional leave and, in the particular circumstances of the modern day role of an NHS consultant such as Dr Stewart, the ambit of what is reasonably incidental is far wider than in the case, for example, of a police constable. Hence this approach would not, in my view, conflict with the exhortations in ex p Stewart and in Faulkner against adopting too broad an approach to what is reasonably incidental.[128]Moreover, in this case there is in my judgment no material difference between the course of employment gateway and the duties of employment gateway. For the same reasons as already given Dr Stewart was whilst attending the conference performing the duties of his employment as well as in the course of his employment. Thus this is a case, like many I would imagine, where both gateways are satisfied. G. The attribution issue[129]Insofar as it is proper for the BSA to raise this argument on this appeal, given that it did not raise it in its previous decisions at any stage of the process, given that it did not raise it before the Pensions Ombudsman, given that it was not a matter raised by the Pensions Ombudsman in his determination and given that although it might be said to have been encompassed within the respondent’s notice the point was not specifically identified until Mr Halliday’s skeleton argument, in my view it cannot succeed anyway.[130]The argument proceeds on the basis that even if Dr Stewart was bitten by the infected mosquito whilst participating in the conference nonetheless the resultant disease is not wholly or mainly attributable to his employment or the duties of his employment because even though – assuming I am correct in the foregoing analysis - he was present at the conference in India in the course of his employment and/or engaged in the duties of his employment, nonetheless anyone present in Surat at that time would have been at the same risk of being bitten by an infected mosquito, so that his being in Surat for employment purposes was only the setting for the mosquito bite to happen rather than the cause of the mosquito bite happening.[131]It is important to consider the undisputed factual context in which this submission is advanced. From the outset Dr Stewart had always said that he had been bitten at the conference itself, where sessions took place outside and where he was bitten three times. The conference took place at the Gateway Hotel in Surat and was a residential conference so that, as Ms Keogh told me on instructions from Dr Stewart when this point was raised by me in the course of the hearing, Dr Stewart ate and slept at the hotel as well as attended the conference there. This is not a case, therefore, where it is open to the BSA on the evidence which was before it or before the Pensions Ombudsman or before me to advance an argument to the effect that Dr Stewart had not proved on the balance of probabilities that the infected mosquito bite took place during the conference itself or within the hotel grounds as opposed, for example, on the way to the conference from the airport or vice versa or in the course of some day or evening away from the hotel and conference for recreational purposes.[132]Moreover, if Mr Halliday’s submission was well-founded it would mean that every injury suffered or disease contracted by an employee whilst working at his place of work, whether that was a permanent place of work owned and controlled by the employer or a temporary place of work such as a building site or – as here – a hotel, would not be wholly or mainly attributable to his employment or duties of employment unless there was some further and closer connection between the precise circumstances in which the injury was suffered or disease contracted and employment or employment duties. It would mean for example that a hospital nurse who tripped over a temporary obstruction for which the hospital was not responsible on a hospital ward during visiting hours and whilst at work would not be entitled to injury benefit because being at work was merely the setting for the trip, which could equally have happened to any visiting member of the public. It would mean that an NHS project manager visiting the site of a proposed new hospital for work purposes would not be entitled to injury benefit if she was stung by a wasp or attacked by a ferocious bird, to use the examples given by Roskill LJ. In my judgment that cannot be right. In order for injury benefit not to be payable where an injury is suffered or disease contracted whilst an employee is working at a place of work where he was required or entitled to be it would be necessary in my judgment for the circumstances to disclose either that there was no real connection between the work and the incident (the example given earlier about an employee who happened to choke on a piece of food whilst eating at her desk) or where there was some more significant cause which was unrelated to the work (for example a stroke whilst at work, the cause of which was unrelated to work).[133]Here, I am satisfied that since the undisputed evidence plainly demonstrates on the balance of probabilities that the infected mosquito bite occurred whilst Dr Stewart was at the hotel and, if necessary so to find, whilst participating in the conference, the infection was wholly or mainly attributable to his employment. If I needed to I would also conclude that it was wholly or mainly attributable to his duties of employment.[134]Finally, given the circumstances in which this point was raised and given the clear conclusions which I have reached on the undisputed evidence, it is not appropriate in my view to remit the matter to the Pensions Ombudsman for him either to determine this attribution issue matter afresh or to remit to the BSA for it to do so. H. The causation issue[135]I have already made reference to the circumstances in which this issue was not dealt with at all by the BSA in its second stage appeal decision and not fully by the Pensions Ombudsman in his Determination. Thus I have already decided at [60] above that on a proper analysis of the second stage appeal decision the BSA made no decision at all on the causation issue and at [72 - 73] above that the Pensions Ombudsman failed to give full reasons for deciding the causation issue against Dr Stewart.[136]As I have said, the failure to give reasons is ground eight of the appeal, whereas ground six is a perversity challenge to the Pensions Ombudsman’s decision as to the causation question and ground seven is a complaint that the Pensions Ombudsman failed to apply the civil standard of the balance of probabilities to the causation question.[137]In his Determination at [20] the Pensions Ombudsman appears to have adopted the findings made by the adjudicator in his revised opinion in deciding against Dr Stewart on the causation issue. It is therefore appropriate to consider those reasons.[138]The first finding is simply a statement of what is and always has been common ground, namely that if the infection occurred during annual leave it cannot fall within regulation 3(2).[139]The second finding was that no substantial weight could be given to Dr Stewart’s evidence:(a) as to the outbreak of dengue fever and chikungunya in Surat when the conference took place and;(b) as to the presence of mosquitoes transmitting both infections simultaneously in that area but not in the other areas visited, due in each case to Dr Stewart’s failure to provide any evidence of his itinerary. This, as is common ground, was an error since Dr Stewart had indeed provided evidence of his itinerary. Since the two points made by Dr Stewart were on any view significant it seems to me that this error alone vitiates the conclusion reached by the adjudicator and adopted by the Pensions Ombudsman, especially in circumstances where Dr Stewart addressed this very point in his submission to the adjudicator made after the issue of his second revised opinion.[140]The third finding related to the absence of contemporaneous medical evidence from India corroborating the onset of symptoms and the absence of medical evidence from the UK post return providing an opinion on when Dr Stewart was likely to have contracted the infections.[141]This absence of contemporaneous corroboratory evidence is a matter upon which reliance was also placed by the BSA in its first stage appeal and it is convenient to consider it here.[142]I have already referred to the fact that from the outset Dr Stewart had always stated consistently that he had been bitten whilst at the conference and that he first experienced symptoms shortly, two days, after the conference. In his letter to the BSA of 3 August 2014 Dr Stewart made three further points supporting his case that the disease was contracted during the conference, namely that:(a) both diseases are carried by mosquitoes that bite during the day;(b) every day of the conference the attendees were outside;(c) mosquito bites were identified during the conference. In his further letter to the BSA of 15 September 2014 he made the general point that it was impossible to provide absolute proof, beyond all doubt, that he contracted dengue fever and chikungunya at the conference. However, he also made a number of specific points, each confirmed by the itinerary of his trip to India and by specific identified references, in support of his case that it was clear on the balance of probabilities that he had done so. They included the following points: (a) there was an outbreak of both dengue fever and chikungunya in Surat during the conference with serotypes found including the one which he contracted; (b) apart from his visit to Surat, he did not visit any other areas in India where chikungunya was common or where mosquitoes carrying and transmitting both viruses were common; (c) he sustained three mosquito bites during the conference and none subsequently;(d) his wife, who accompanied him during the subsequent holiday but not the conference, only sustained one mosquito bite and did not contract any illness. These are all clearly facts of significant relevance to the causation issue and which were never challenged or doubted by Dr Simpson or the BSA or queried by the adjudicator or the Pensions Ombudsman.[143]It is clear from Dr Simpson’s report that he was provided with these letters and that he considered them. His medical opinion was that “it was not possible to state exactly where and when” (emphasis added) Dr Stewart sustained the infected mosquito bite although, as I have said, his medical opinion was also that if Dr Stewart developed infective symptoms two days after the end of the conference then “it was likely, on balance, that he sustained an infected mosquito bite during this period of time”. Dr Simpson did not identify anything in his report which cast any doubt on Dr Stewart’s version of events. Nor did he state that in his opinion Dr Stewart’s credibility or reliability was undermined by anything in the information which he had provided or by reference to any other material. Nor, when he knew (or should have been advised by BSA, since Dr Stewart had referred to this in his email of 19 March 2014) that:(i) Dr Stewart had attended hospital in India when the clinical diagnosis was confirmed; and(ii) Dr Stewart had also obtained a confirmatory diagnosis on his return to the UK, did he express an opinion either that: (a) a more definite opinion could be given if evidence from those two sources was obtained; or (b) Dr Stewart’s credibility or reliability was undermined by his failure to obtain and submit such evidence.[144]In my judgment it follows that there was nothing in Dr Simpson’s opinion which in any way undermined Dr Stewart’s case. The highest which it could be put was that Dr Simpson felt unable on the evidence before him to express a medical opinion one way or another. He made it clear that in his opinion the critical question was whether or not Dr Stewart had indeed developed infective symptoms 2 days after the end of the conference period, as to which he was unable to express an opinion from a medical point of view. Indeed many readers might have read his report as being overall favourable rather than unfavourable to Dr Stewart’s case although that was not, it would appear, how it was read by the BSA.[145]In my judgment, it was incumbent upon the BSA as the primary decision-maker to reach an opinion as to whether or not, on the balance of probabilities, Dr Stewart had developed infective symptoms two days after the end of the conference. It did not do so. Instead, whilst it stated that it did not “question” his veracity, in other words his truthfulness, it stated that it “required” contemporaneous corroborative evidence of his sustaining a mosquito bite during the conference. It is clear in my view that on any reading of the decision it was only the absence of this evidence which it relied upon to decide against Dr Stewart on the causation issue.[146]However, as Ms Keogh submitted, there is clearly no requirement, whether under the Injury Benefit Regulations or otherwise, for contemporaneous corroborative evidence to be provided as a precondition of establishing entitlement under regulation 3(2). Moreover, there was no evidence before the BSA to justify it reaching a conclusion that Dr Stewart might reasonably be expected to have been able to provide such evidence, such that the absence of that evidence cast doubt on his credibility or reliability. In my judgment the BSA could not have relied upon Dr Simpson’s opinion that it was not possible to state exactly where and when Dr Stewart was bitten when Dr Simpson was not purporting to reach an opinion on the balance of probabilities, as opposed to stating a medical opinion on the available medical evidence.[147]In short, in my judgment it is plain that the BSA abdicated its responsibility to make a decision on the balance of probabilities on the causation issue. Moreover, it is also plain that the BSA did not expressly address the evidence adduced by Dr Stewart which, as I have said, was never contradicted or doubted, and which on his case made it more likely than not that the infected mosquito bite did occur whilst attending the conference in Surat as opposed to on his subsequent holiday. It is clear that the BSA did not consider it, due to its erroneous approach as to the necessity for contemporaneous corroborative evidence. It would also appear from Dr Simpson’s report that insofar as he considered it he did so only in the context of his conclusion that it was not possible to state “exactly” when and where the infected mosquito bite occurred. It follows that it would not have been proper for the BSA or the Pensions Ombudsman to place any reliance on that when deciding whether or not it was possible to reach a conclusion by reference to this as well as the other available evidence on the balance of probabilities.[148]In that respect, as I have said the adjudicator stated that Dr Simpson had reached the conclusion that the available medical evidence did not establish on balance that the infections were acquired at the conference. He stated that in the absence of any conflicting medical evidence the BSA was entitled not to depart from Dr Simpson’s advice. However this, in my view, is either to misunderstand Dr Simpson’s report or to attach a weight to it which was not justified. It is clear in my judgment that neither the BSA nor the Pensions Ombudsman could properly have regarded Dr Simpson’s evidence as anything other than at best equivocal on the fundamental issue. Moreover, neither the BSA nor the Pensions Ombudsman could properly have regarded Dr Simpson’s evidence as justifying the BSA in abrogating its responsibility for reaching a decision on the fundamental factual question as to the onset of symptoms which would answer the question one way or another. This is effectively the point which the Pensions Ombudsman referred to at [20] of the Determination but did not go on to decide.[149]Moreover, the Pensions Ombudsman, despite acknowledging that he had available to him the report from Dr Vilar, did not address that report in any way. Mr Halliday argues, in reliance on the decision in Suggett, that it would not have been proper for the Pensions Ombudsman to admit fresh evidence. Whilst this may be correct, that is not a decision which the Pensions Ombudsman actually made and, as I have said, under the Pension Schemes Act 1993 he had full jurisdiction to determine disputes of fact as well as disputes of law and under the Personal and Occupational Pension Schemes (Pensions Ombudsman) (Procedure) Rules 1994 he had wide powers, including the power to hold public hearings and receive evidence. In my view he ought either to have stated that Dr Vilar’s report was not something which he could consider or he ought to have considered it, whereas what in fact he did was to appear to have ignored it completely.[150]In the circumstances I am satisfied that the approach of the BSA in its decision on the causation issue was fundamentally flawed in that it failed to ask itself and to decide the fundamental factual question which it was its responsibility to determine on the balance of probabilities and, instead, simply ducked the question by wrongly seeking to impose an obligation on Dr Stewart to provide contemporaneous corroborative evidence and by wrongly seeking to attach a weight to the opinion of Dr Simpson which it could not bear. I am also satisfied that the Pensions Ombudsman was wrong in law in that he failed to address or to decide this fundamental issue and sought to uphold the decision of the BSA on the grounds relied upon by the adjudicator which were in one important respect quite clearly factually wrong and in other respects conclusions which wrongly agreed with the fundamentally flawed approach of the BSA. Can I, and if so should I, decide the causation question?[151]In the light of the above conclusions the question arises as to whether I can, and if so I should, decide the causation question for myself. Ms Keogh submits that I should, on the basis that I have all the relevant material before me and I am in as good a position as was the BSA and as was the Pensions Ombudsman to do so. Mr Halliday submits that I should not, on the basis that the decision is entrusted by Parliament to the Secretary of State who has lawfully delegated it to the BSA subject only to review on supervisory grounds by the Pensions Ombudsman and subject only to an appeal on a point of law from the Pensions Ombudsman to the High Court, so that the appropriate course is to remit to the Pensions Ombudsman with a direction that he should remit to the BSA for a fresh decision with the benefit of this judgment and such specific directions as might be necessary.[152]Given that I am not the primary decision maker and that my role is to decide whether or not the Pensions Ombudsman erred in law in his review of the lawfulness of the decision of the BSA, it appears to me that the question for me to decide is whether or not on the evidence before the BSA there was only one answer to the causation question which could be made on the basis of a correct application of the law to the facts which would not have been perverse or outside a range of reasonable outcomes. On the basis of the authorities referred to at paragraph [31] above the question for me is whether or not the Pensions Ombudsman erred in law in failing to conclude that the decision of the BSA was perverse and in failing to conclude that the only legally and factually correct answer to the causation question was that Dr Stewart had established on the balance of probabilities that the infected mosquito bite had happened at the conference.[153]In deciding that question I have regard to the fact that the decision of the BSA was made solely on the basis of the written evidence which was before it and as to which there was no factual dispute, so that this is not a case where the primary decision maker or the Pensions Ombudsman had the benefit of an evaluation of the oral evidence given by witnesses, whether of fact or of opinion, or had purported to make a decision as to which evidence should be preferred in circumstances where that evaluation is pre-eminently a matter for the BSA as the primary decision-maker. Nor is the causation question one to which either the BSA or the Pensions Ombudsman could be expected to apply specialist knowledge or experience which the court does not have.[154]Having considered the evidence which was before the BSA I am firmly of the opinion that Dr Stewart had quite clearly established on the balance of probabilities that the infected mosquito bite had happened at the conference and that any other conclusion would have been perverse. My reasons are as follows:(a) There were only ever two possibilities, either that the bite happened during the conference or that it happened during the subsequent holiday. No-one has ever suggested and nor is there any sensible basis for a suggestion that he could have been bitten once by a dual infected mosquito during the conference and again whilst on holiday.(b) The medical opinion of Dr Simpson did not in itself provide an answer one way or another. However it was relevant in the following respects: (i) Dr Simpson’s opinion was that if Dr Stewart was right in stating that he developed infective symptoms two days after the end of the conference then it was likely on balance that he sustained the infected mosquito bite during the conference; (ii) Dr Simpson accepted that it was likely that both infections were contracted at the same time, i.e. from the same infected mosquito bite; (iii) Dr Simpson recorded, without adverse comment from a medical perspective, Dr Stewart’s evidence as to there having been an outbreak of the infections in Surat whilst he was at the conference and as to the mosquito type and distribution in India and the infections carried all of which made it more likely that he was bitten and infected in Surat; (iv) Dr Simpson recorded, without adverse comment either from a medical or other perspective, Dr Stewart’s evidence as to his having been bitten three times in Surat and not once subsequently and to having developed infective symptoms 2 days after the end of the conference period; (v) there was no suggestion from Dr Simpson, from a medical or other perspective, that it was unusual or worthy of comment, negative or otherwise, that there was no documentary medical corroboration to support Dr Stewart’s case as to when he was bitten and infected and first developed symptoms.(c) The BSA accepted, undoubtedly correctly, that there was no reason to question Dr Stewart’s veracity.(d) The BSA never expressed any adverse opinion as to his credibility or reliability as a historian. It has pointed to no evidence, nor has my attention been drawn to any evidence, from which any rational conclusion could be drawn other than that there was no reason to doubt his credibility or reliability. BSA and its medical advisers had been provided with a detailed account and supporting evidence by Dr Stewart on a number of separate occasions from October 2013 as to the circumstances in which he said he had contracted dengue fever and chikungunya. He had supported his account by documentary evidence, including references. As Dr Simpson recorded, the BSA had been provided with copies of GP and occupational health records and ill-health retirement papers as well as submissions from Dr Stewart and the Trust. There had never been a request made by the Trust or the BSA for Dr Stewart to provide further documentary evidence which he had failed or refused to provide. There had never been any suggestion that he had been un-cooperative or evasive in his explanations nor any suggestion that there were any inconsistencies in his account. In the circumstances, in my view the only rational conclusion which could have been reached was that his version of events was credible and reliable.(e) I have considered carefully whether or not it could rationally have been open to the BSA to decide the causation question against Dr Stewart simply because he was making the claim and hence bore the burden of proof and because he had produced no contemporaneous corroborative evidence either of having suffered an infected mosquito bite during the conference or first suffering symptoms two days later. I am satisfied that it could not. In the absence of any rational reason to consider that someone in his position ought to have been able to provide such contemporaneous corroborative evidence and in the absence of any rational reason to consider his credibility or reliability as a historian open to question it is my firm view that the BSA could not rationally have decided on the balance of probabilities that the infected mosquito bite did not occur at the conference. Unless there was some rational reason to doubt his account that he first suffered symptoms two days after the conference, the BSA was bound to accept that it followed from Dr Simpson’s opinion that Dr Stewart must have suffered the infected mosquito bite at the conference. It must be borne in mind that the BSA knew, because Dr Stewart had told it, that Dr Stewart had been medically examined both in India and on his return, so that there was no intrinsic reason to doubt his account and it would of course have been open to it to ask him to ask for and provide records had it wished to do so.(f) Furthermore, in my judgment Dr Stewart’s credibility and reliability as to when and where he was bitten during his trip and when he first suffered symptoms was powerfully buttressed by the corroborative documentary evidence which he produced as to there having been an outbreak of the infections in Surat whilst he was at the conference and as to the mosquito type and distribution in India and the infections carried. Dr Stewart had assembled a powerful case in support of his account that he was infected at the conference rather than during his subsequent holiday, buttressed as I say by independent evidence, and neither Dr Simpson as the medical adviser nor the BSA had ever suggested that it did not bear the weight which Dr Stewart sought to place on it. In my judgment it provided considerable support to his factual case and, hence, positively supported his credibility and reliability.(g) Finally, there was absolutely nothing which the BSA did or could point to which tipped the balance in the other direction. There was no contrary evidence or argument to evaluate. The absence of such evidence or argument is what explains, in my view, why the BSA had to fall back on giving as a reason for deciding the causation issue against him that Dr Stewart was obliged to provide contemporaneous corroborative evidence to support his case, when that was – as I have said – in my view quite plainly wrong in law.[155]Finally, I have considered whether I should allow the BSA the opportunity to ask its medical adviser to consider the further medical evidence submitted by Dr Stewart to the Pensions Ombudsman in case that does, or even arguably may, change the position. I have considered that there is no good reason to do so. The BSA took the decision not to ask for a report or records from the treating physician Dr Vilar when the decision was before them and did not invite the Pensions Ombudsman to stay his decision whilst they put the report (and the records, if thought relevant) before the medical adviser. The Pensions Ombudsman did not agree to its suggestion that he should defer making a decision on the causation question until he had decided the employment question so as to allow the BSA to have a further bite at the cherry. Moreover, it is clear that there is nothing in Dr Vilar’s report which provides any basis for questioning Dr Stewart’s case, whether in relation to the medical issue or in relation to his credibility or reliability. The most that can be said - as Mr Halliday submitted - is that it does not conclusively support his case.[156]Moreover, and whilst strictly irrelevant to my decision, I would not have reached a contrary decision with any enthusiasm, given the significant delay which has already occurred in this case. A decision to remit would allow the BSA an opportunity to investigate evidence which it had consciously decided not to ask for when the decision was before them over a protracted period culminating in it making no final decision on the causation question. Nor did they ask for that opportunity when the matter was before the adjudicator or the Pensions Ombudsman unless they lost on the employment issue and, as I have said, neither Dr Stewart nor the Pensions Ombudsman agreed with that approach. To remit would undoubtedly lead to further delay in resolving this case which in my view is not to be encouraged unless there is no other option properly open to the court. I. Conclusions[157]It follows that the appeal succeeds.[158]Whilst I will hear submissions as to the proper order to make to give effect to this judgment, my provisional view is that I should quash the determination the subject of this appeal and direct the Pensions Ombudsman to provide a new determination which directs the BSA to determine that Dr Stewart has satisfied the requirements of regulation 3(2) of the Injury Benefit Regulations as regards his claim for TIA and to determine his claim for TIA accordingly, and that this should include a determination in relation to the payment of such benefits as ought to have been paid from the date the claim was first made together with interest at the prescribed rate on any payment in respect of benefits which ought to have been paid earlier.[159]The effect of the above, as I intend it, would be that it would be for the BSA to make a fresh determination in relation to the claim for TIA on the basis that it must conclude that regulation 3(2) is satisfied and which if appropriate should include a determination in relation to back benefit and interest. Of course if and insofar as Dr Stewart was dissatisfied with its determination in these respects he would be entitled to take that up with the Pensions Ombudsman if he so wished.

Cited in 1 later judgment